Plaintiffs Roee and Adiel Kiviti filed a suit on Thursday in Maryland District Court against US State Department and Secretary of State Michael Pompeo, alleging that the State Department has wrongfully refused to grant their infant daughter, K.R.K., US citizenship.

Roee and Adiel are naturalized US citizens born in Israel. Roee became a US citizen in 2001. Adiel, who is the biological father of K.R.K., married Adiel in 2013, moved to US in 2015 and became a US citizen in 2019. K.R.K. was born via surrogate in 2019 in Canada, at which time Roee and Adiel were married and were both US citizens.

While  rejecting her citizenship under § 301(c) of the Immigration and Nationality Act (INA), Plaintiffs allegee the State Department erroneously applied two sets of more stringent requirements, namely §309 of the INA, which applies only to the children of unmarried parents; and §301(g), which applies only if one of the parents is a noncitizen.

Plaintiffs alleged that pursuant to agency policy, the State Department applied the requirements of Sections 309 and 301(g) that govern when an unwed father has a child with a noncitizen, and then determined that K.R.K. is not a U.S. citizen because Adiel, the only biological father, had not lived in the US long enough to meet Section 301(g)’s five-year residency requirement.

However, §301(c), which applies to married couples, does not have such requirement. In reaching the decision, State Department officials allegedly failed to acknowledge the validity of Roee and Adiel’s marriage, deemed K.R.K. to have been “born out of wedlock,” and treated Roee as if he were not K.R.K.’s parent. Plaintiffs stated that “this was wrong, discriminatory, and a violation of Plaintiffs’ statutory and constitutional rights.”

Beside the petition for their daughter’s citizenship and passport, the Plaintiffs also seek a judgment declaring that the State Department’s policy and practice of classifying the children of married same-sex couples as “born out of wedlock” and the State Department’s consequent refusal to recognize K.R.K.’s citizenship status on that basis, unconstitutional and a violation of the INA, both on its face and as applied to Plaintiffs.